Constitutional Convention?

by Cliopatria

Adam Kotsko asks"If you were presented with the opportunity to vote on holding a new constitutional convention with the potential to dissolve the union, would you vote yes or no?"

Most of the people who have responded so far have been negative, but more about the idea of dissolving the union rather than the constitutional convention process itself. My response was:

The Constitution is a fantastic document, but it is not perfect. Some of its finest features had to be jerry-rigged in through early amendments, and some of the original language is deeply troubling and irrelevant.

A Constitutional convention might have the potential to dissolve the union, but it also might have the potential to allow us to redefine ourselves and refine our political processes in creative ways.

Take the Electoral College.... please!
My students and I were talking about it, and I pointed out to them that the current system would need to be reformed by those people who benefit from the current system, so it would take extraordinary pressure to produce real change using our normal constitutional process. But a convention would be unbounded by such rules.

Yes, it invites chaos. But it also might be our best hope to renew and revitalize our flagging democratic spirit.

Then I wondered. Why is Kotsko asking? How much of"A Hypothetical" is this question?

I'm having some trouble finding a definitive answer. I vaguely recall hearing, reading, something which said that we're only a few states away from calling a full-bore Article 5 convention, but it's not something which comes up too often.... A bit of googling and I found this lesson plan from the Constitutional Rights Foundation, which claims that we are only two states away from exceeding the 2/3rds threshold for a convention.

I can't find any other credible sources, or a list of ratifying states. CRF says that the issue with the most states on board right now is a balanced budget amendment, but once a convention is called it isn't clear that it would be limited to that issue, which is what makes everyone so nervous about the prospect. I'm actually not entirely sure, based on Article 5, that dissolving the union is among the powers of the convention, which makes the original question kind of suspect. Anyone know more?

Speaking of the State of the Union, David Beito takes a comment by Ralph Luker on the similarity of voting geography between this election and the 1896 McKinley-Bryan contest, and posts the maps. How have we held the country together this long? If we're really ready to give up, Roderick Long has tips and resources for secession movements. Kevin Drum thinks that's about right, posting the 1860 electoral map for comparison.

A Modest Proposal: Another Damned Medievalist finally convinced me to register with Blogger so I could post a comment on this political proposal. Much of it is pretty moderate (which is why I think it would be a great idea) but her last two bullet-points would radically alter politics and policy as we know it:

all military action expected to last more than one week must be ratified by the Senate
No bill shall pass through Congress that has more than one topic; sub-topics must relate directly to the letter AND spirit of the main topic.

It will never come to pass without a truly powerful mass movement, because it would, in fact, reveal the true nature of our politics and politicians. Chaos, the constructive kind, would run rampant. Sounds good to me.

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Ralph E. Luker - 11/7/2004

Of course, you are correct, Oscar. The Supremes cannot comment on anything unless there is a case regarding it brought through channels to their attention.

Oscar Chamberlain - 11/7/2004

Interesting.

If you are right about the state of precedent, the court would proobably hold, if pressed, that there is no need for a decision unless someone agrieved--in this case a Congressmen who really wanted his raise--sued.

Richard Henry Morgan - 11/6/2004

Well, the US Supreme Court in Dillon v. Gloss (1921) suggests the general limitation of a "reasonable" time period, and I think it affirms the additional right of Congress to specify a period for ratification. Whether the pronouncements of the Court in Dillon v. Gloss are mere dicta ...

As far as I can tell, the DC Circuit refused an amicus brief argument to the effect of limitations concerning the 27th amendment. That was in Boehner v. Anderson (1992 or 1994 -- I can't remember which, or both, since I seem to remember there were two decisions: an original appellate decision, and an en banc rehearing). In any case, there's (as far as I can tell) no US Supreme Court jurisprudence on the matter -- the validity of the ratification has never been affirmed by the USSC court, explicitly or implicitly.

Now I'm working from sketchy memory, not a law library. But my impression is that the question of whether the 27th is part of the Constitution is yet to be determined by the USSC.

Oscar Chamberlain - 11/6/2004

There was considerable discussion of time limits at the time the ERA was active. (It had one) But I don't think there was a court case.

In any event, the 27th (and latest) amendment to the constitution went to the states in 1789 and was finally ratified in 1992. See http://www.yale.edu/lawweb/avalon/amend1.htm#27
which is part of the marvelous Yale Law School's Avalon site. Home page= http://www.yale.edu/lawweb/avalon/

Richard Henry Morgan - 11/6/2004

I believe the Supreme Court (but I can't cite the case) has ruled there are "reasonable" time limitations on ratification of amendments -- I wonder if such a principle would apply to a call for a convention? Also, there is the question of the status of revoked votes for ratification -- is the revocation operative if it occurs before the amendment is fully ratified?

Then there's the problem of Texas, which can queer the pitch by splitting into three states, thereby garnering an extra 4 Senate votes (red state votes?).

Oscar Chamberlain - 11/6/2004

Jon, Interesting thought. I can see how one could interpret it that way. However, I think the right to dissolve the Union is a little like the right of revolution or right to dissolve and create new governments (ideas included in general language in some early state constitutions).

Some people in one of the states (Rhode Island?) somehow got that principle before the state's supreme court. The court ruled, in effect, "you have the right, but only if you win."

Lloyd Kilford - 11/6/2004

I think that a Convention's powers are limited more by current political events than the Constitution as it stands.

If things were really going off the rails, then a Convention could draft a new Constitution and start circulating it around the states. Isn't the current Constitution the product of a similar body, supposedly called to revise the Articles of Confederation?

I think personally that Constitutional theory is silent on this, except to say that if it works (Constitution 2.0 is accepted) then it was lawful ...

Jonathan Dresner - 11/5/2004

Would that final clause, about equal representation in the Senate, preclude a convention from dissolving the union, in the sense that any state removed from the union would have to consent to its loss of representation?

Oscar Chamberlain - 11/5/2004

I've stuck Article V in below. Quite intresting in this context:

1. It looks to me like a a convention called by the states could not be limited to specific topics.

2. However, 3/4 of the states would still need to ratify whatever emerged.

3. There's a curiosity. The ratification process will be either by convention or popular vote, but it is the Congress that decides that, even though it would have had no other part in the process in this situation.

"The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this constitution, or on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which , in either case, shall be valid to all intents and purposes, as part of this constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided, that no amendment which may be made prior to the year 1808, shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate. "

Jonathan Dresner - 11/5/2004

I agree with you on the Electoral College; I was mostly just talking about its present winner-take-all, low-population-bias form.... except that if we went to an Instant Runoff Vote then I would argue in favor of direct election.

Anne Zook - 11/5/2004

I'm not in favor of dissolving the union. This country is too deeply divided to reinvent itself as a single unit. (There's less of a spirit of "equality and tolerance for all" in the air today than there was 200 years ago. You'd never get the southern bigots to accept a new union where San Francisco is allowed to exist as it exists today.)

But what I stopped by to comment on is the Electoral College quote. Every time I read someone advocating dissolving the Electoral College, my hair stands on end.

Rather than supporting such a movement, people who understand the principles underlying the College should try to educate people about how it operates. This is a state issue. There's nothing wrong with the College in and of itself, it's the way states approach assigning their Electoral Voters that's the problem.

I believe in democracy, but I like the kind we have. The kind where the direct vote is balanced by representative votes. The direct election of a president...the idea gives me nightmares. The electoral college is like democracy...it's a dreadful system, and the only thing worse are the alternatives.

In my, you know, completely uninformed and uneducated opinion and stuff.